Legal Commentary

Thug Destroys Supposedly Blasphemous Art, Museum Refuses to Replace It, Citing ?Safety Concerns?

By Eugene Volokh

Very unfortunate; the AP reports:

A piece of artwork denounced as obscene by church members and allegedly ripped up by a Montana woman using a crowbar won?t be returned to display because of safety concerns, city officials said Thursday.

?The incident yesterday was very troubling and also very impactful on the city staff, volunteers and the public at the venue,? said Rod Wensing, acting city manager.

Kathleen Folden, 56, of Kalispell, Mont., was arrested Wednesday on a charge of criminal mischief. Witnesses told police that she used a crowbar to smash glass shielding the print at the Loveland Museum Gallery and then tore part of it up....

Police said the damaged part includes what critics say was a depiction of Jesus Christ engaged in a sex act....

The artist, Stanford University professor Enrique Chagoya, told The Associated Press on Thursday that the work has been mischaracterized. He said while the part in question is suggestive, it?s not graphic.

The panel includes figures cut out from a comic book, a head resembling Christ and a skeleton with a pope?s hat.

?This is not Christ. It?s a collage,? Chagoya said. ?What I?m trying to express is the corruption of the spiritual by the church.? ...

The museum, including a city-owned museum, has no obligation to include any particular work in its exhibits. Like a government-run newsletter or a typical Web site for a government agency, the museum is not an open forum for citizens? speech; its managers may exercise editorial choice as to what ends up becoming the museum?s (and therefore the city?s) speech. See Pleasant Grove City v. Summum.

But it seems to me that museums, whether public or private, ought to take a stand against thuggery, and ought not surrender to the thugs? demands. Behavior that is rewarded is repeated, and I would hope that museums would see the costs of providing further encouragement to those who would vandalize museums (or for that matter threaten to vandalize them).

To respond to a constitutional question that is likely to arise: Note also that the Establishment Clause doesn?t prohibit the display of allegedly blasphemous or antireligious works in government museums, just like it doesn?t prohibit the display of pro-religious works in government museums. See, e.g., the various opinions? mentions of museums in County of Allegheny v. ACLU (as well as Justice O?Connor?s dissent in Van Orden v. Texas). An entire government museum devoted to Christian painting or to anti-Christian blasphemy might violate the Establishment Clause ?endorsement test? (which still seems to be part of the law). But occasional artworks in such museums would not be seen as sending a message of government endorsement of religion.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Full post as published by The Volokh Conspiracy on October 10, 2010 (boomark / email).